WA Bill to Repeal Laws on Imprisonment for Unpaid Fines

Friday 29 November 2019 @ 11.25 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The Fines, Penalties and Infringement Notices Enforcement Amendment Bill 2019 (the Bill) was introduced in the WA Parliament on 26 September 2019, by WA Attorney-General, Mr JR Quigley, (the Attorney-General). In his media release of 25 September 2019, the Attorney-General said that the Bill would introduce a package of “amendments to existing legislation [that] will significantly change the way fines are enforced and recovered in WA”; as well as including proposed reforms that aim to “address over-representation of Aboriginal and Torres Strait Islander people in the justice system and have a positive impact on the regions”.

Non-Payment of Fines

The key change proposed by the Bill is the restriction of “imprisonment for non-payment of fines”. It is to be restricted so that it can only be ordered by a Magistrate, and even then “only as a sanction of last resort”.

This reform is an important amendment which implements a recommendation of the Coronial Inquiry into the death of Ms Dhu, a Yamatji woman who was taken into custody on a warrant of commitment for unpaid fines in 2014. The proposed changes to the laws have taken more than five years after the death in custody of Ms Dhu.

As reported in the Guardian, the 22-year-old Ms Dhu was detained in Port Hedland as a result of $3,622 in unpaid fines.  She died of septicaemia on 4 August 2014, following “unprofessional and inhumane treatment”.

The Attorney-General has indicated that 433 people were jailed for unpaid fines in WA in 2018 at a cost of $1.56 million. He estimated the reform would free up 80 prison beds and save the State $1.8 million per annum. Indicating that imprisonment would be a last resort the Attorney-General said:

“It is important that imprisonment remains available as a means of enforcement for those who can afford to pay their fines but thumb their noses at the system and accrue fines with no intention of paying them back, having ignored all other attempts at enforcement . . .”

Overview of Changes

The proposed amendments to the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) also include:

  • the introduction of garnishee orders, which will enable the Sheriff to issue orders to a debtor's employer or bank and require them to garnish funds from salaries or bank accounts. Safeguards have been built into this process to require a "protected amount" to remain in a person's salary or bank account to avoid creating undue hardship;
  • the introduction of a statutory concept of "hardship", which includes mental illness and disability, experience of family and domestic violence, homelessness, drug and alcohol problems and financial hardship;
  • the introduction of "work and development permits" for debtors experiencing hardship affecting their ability to pay their fine debts;
  • a prohibition on issuing licence suspension orders for debtors whose last known address is in a remote area, in recognition of the disproportionate impact of suspended licenses on debtors living in remote areas without public transport infrastructure; and
  • a new "conditional release undertaking" model to allow offenders who have been arrested on a warrant to be brought before the court for a warrant of commitment inquiry to be released.

The Bill also proposes the cancellation of all unserved warrants of commitment on the day after it receives Royal Assent, “removing the fear of imprisonment for fine default for thousands of Western Australians”.

Comment and Reaction

The Guardian Australia reports the Aboriginal Legal Service of WA chief executive Dennis Eggington as saying the reform would “absolutely” save lives: “This is a piece of legislation that makes this a better civil society so don’t argue about it too much, just get it through . . .”

The Law Society of Western Australia and the Law Council of Australia are reported as having welcomed the announcement of the Bill by the Attorney General and the proposed changes to the enforcement and recovery of fines in WA. In a joint media release, Law Society President Greg McIntyre SC said:

 “Imprisonment for fine default has impacted adversely on the most vulnerable in our community, including Aboriginal and Torres Strait Islander peoples, and has a huge cost socially and to the taxpayer. Replacement by debt recovery and community service options is welcome and will be far less costly to the community.”

Law Council of Australia President Arthur Moses SC said:

“Imprisonment for fine default is an inherently disproportionate and ineffective punishment which only serves to criminalise people living in poverty. This Bill will bring Western Australia further in line with the recommendations of the Australian Law Reform Commission in the Pathways to Justice Report and of the Law Council in the Final Report of the Justice Project, which called for the practice to be abolished in all jurisdictions.”

The Bill passed all stages in the Legislative Assembly on 14 November 2019.

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